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Smith v. United States

December 14, 2009

BENJAMIN SMITH, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. John E. Jones III

Hon. Thomas M. Blewitt

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Thomas M. Blewitt (Doc. 55), filed on December 29, 2008, which recommends that we grant the Defendants' Motion for Summary Judgment (Doc. 32) with respect to the four remaining claims against all seven remaining Defendants and that Plaintiff's cross-Motion for Summary Judgment be denied. (Doc. 43). Plaintiff Benjamin Smith ("Plaintiff" or "Smith") filed objections to the report (Doc. 60) on March 2, 2009.*fn1 The Defendants have responded to Plaintiff's objections. (Doc. 62). Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, grant the Defendants' Motion for Summary Judgment, deny the Plaintiff's cross-Motion for Summary Judgment and close this case.

I. PROCEDURAL BACKGROUND

Plaintiff, formerly an inmate at the United States Penitentiary at Canaan ("USP-Canaan"), filed, pro se, a joint Federal Tort Claims Act and Bivens*fn2 action, pursuant to 28 U.S.C. § 1331, on June 15, 2007.

After preliminary screening of Plaintiff's Complaint, on August 3, 2007, Magistrate Judge Blewitt issued a R&R wherein it was recommended that all Defendants and all claims be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, with the exception of Plaintiff's First Amendment access to courts claim against Defendant Lara and his Eighth Amendment failure to protect claims against Defendants Kizziah, Bossick, and Wanger. On December 3, 2007, this Court entered an Order adopting in part and rejecting in part the August 3, 2007 R&R. Specifically, we allowed the following Bivens claims to proceed:

1) The Eighth Amendment denial of proper medical care claims against Defendants Emergency Medical Technician ("EMT") Simonson and clinical director Dr. Dalmasi regarding treatment for Plaintiff's alleged injuries from his ingestion of glass from Snack Legends cookies;

2) The Eighth Amendment failure to protect claims against Defendants Captain Kizziah, Senior Officer Specialist Wagner and Senior Officer Bossick;

3) The First Amendment denial of access to courts claim against Associate Warden Lara; and

4) The conspiracy claim against Defendants Kizziah, Lara and Lieutenant Clookey.

Thereafter, on August 8, 2007, the remaining seven Defendants jointly filed a Motion to Dismiss and for Summary Judgment. (Doc. 32). The Motion was fully briefed. Additionally, the Plaintiff filed a cross-Motion for Summary Judgment. (Doc. 43). This Motion was also fully briefed.

On December 29, 2009, Magistrate Judge Blewitt issued the instant R&R (Doc. 55), which is presently ...


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